[1936] EACA 43

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR SIDNEY ABRAHAMS, C. J. (Tanganyika), and HALL, C. J. (Uganda).

REX, Respondent (Original Prosecutor)

LULAKOMBA S/O MIKWALO and KIBUGU S/O KIBEGE, Appellants (Original Accused).

Cr. App. Nos. 153 and 154/1935.

Criminal Law-Defence not considered-Retrial-Criminal Procedure-Witnesses not cross-examined nor depositions put in-Deposition referred to by trial judge-Witness called and cross-examined by prosecution after close of case for defence.

The facts appear from the judgment.

*Held* (18-2-36).—

1. That where a defence, not manifestly false, is made the trial judge must put it to the assessors and to himself, and failure to do so constitutes a miscarriage of justice:

2. That it is improper for the judge to refer to the depositions when they have not been put in evidence:

3. That it is improper to allow the prosecution, after the case for the defence has closed, to call for the purpose of crossexamination a witness who gave evidence for the defence before<br>the committing magistrate but was not called at the trial.

(R. v. Newmark (1934 E. A. C. A. 162) followed).

Appellants absent, unrepresented.

Dennison, Crown Counsel, for the respondent.

JUDGMENT (delivered by SIR SIDNEY ABRAHAMS, C. J.).—The appellants were convicted of the murder of one Chija. The case for the Crown was that the first appellant had lost two children by death, and that as the result of consulting a witch doctor he had concluded that his aunt Mafuke was responsible for their death, and he determined to equalize matters by killing Chija, the son of Mafuke. He went to one Kohaye, a nocturnal thief, and after some difficulty persuaded him to kill Chija for twenty shillings. At night Kohaye, the second appellant and a third man who was never identified went to the hut of Chija. Kohaye attempted to break into the compound, but was met by Chija, who speared him. Kohaye ran off, and his dead body was found the next day a few yards away. The unidentified man then seized Chija from behind and the second appellant killed him with a spear.

The case against the first appellant rested mainly upon the evidence of Niabosi, the wife of Kohaye, who described with much detail and very graphically the visits of the first appellant to her husband, the reasons for desiring Chija's death, the instigation to murder and the bribe, and the visit to her the morning after the murder to tell her of hier husband's death and the subsequent murder of Chija. This woman admitted she had not disclosed the murder-plot, and that she had given evidence because she considered the first appellant ought to have paid her the money promised to her husband. The learned trial judge considered she was not an accomplice, and, though he regarded her as a degenerate person, he was so impressed with her evidence that he accepted it as true. We are by no means satisfied that a person of this character should receive full credit without corroboration, but we are relieved from deciding this as we are of opinion that there was corroboration of her evidence. $_{\rm She}$ mentioned that when the first appellant came first to instigate the murder he told her husband in her presence of the consultatation with a witch doctor, and that he did consult a witch doctor is borne out by another witness. There is then the detailed description of the murder said to have been given to her by the first appellant, and these details are substantially borne out by other witnesses. The learned judge and the assessors, who were told to scrutinize her evidence carefully, were impressed by the apparent veracity of the woman, and in the circumstances we see no reason why she should have been disbelieved.

There is, further, certain suspicious conduct on the part of the first appellant in merely amusing himself instead of going to view the corpse of his relative after the murder. His defence was an alibi, but as there was no evidence that he was present when the act was done, it does not matter whether he was on the spot or no. since the case for the Grown discloses an instigation to kill Chija, and Chija was killed by a person leagued with the man instigated.

We see no reason to interfere with the conviction of the first appellant and dismiss the appeal.

As regards the second appellant, the mother and wife of Chija purport to have recognized him as the man who actually killed Chija. His defence was an alibi. He called his wife, his father, and his mother to say that he did not leave and could not have left the *boma* on the night of the murder. The learned judge, without giving any reasons, merely says he could not accept his defence. The record does not show whether or no the defence was put to the assessors, but the learned judge certainly did not put it to himself. We would say that a defence, unless manifestly false, and this is not so on the record, is not to be dealt with in this way. There is no rule of law or practice which

permits the evidence of near relatives to be discounted because of their relationship to an accused. It follows that this appellant has not had a fair trial, and we quash his conviction and order him to be re-tried. $\mathcal{L} = \mathcal{L} \times \mathcal{L}$ $\mathcal{L}^{\mathcal{L}}$

There are two features in this case which appear to us to demand comment. The learned trial judge referred to the depositions for the purpose of contradicting certain of the defence witnesses. It does not appear that the witnesses were crossexamined on their previous statements, nor were the depositions put in evidence. The action of the learned judge was clearly without justification. Then after the close of the case for the defence counsel for the Crown applied for and obtained leave to cross-examine a witness who had given evidence for the defence in the magistrate's court, but had not been called at the trial. This course of action intended to aid the Crown case is most surprising. We know no authority to permit a witness to be called by one party for the purpose of cross-examination. The impropriety of the Court in permitting the prosecution to call or itself calling a witness after the defence has closed, where it is not sought to correct something arising ex improviso, has been commented upon by this Court in more than one case, and notably in R. v. Newmark (1934 E. A. C. A. 162), where the principle laid down in such matters in R. v. Harris (20 Cr. App. R. 86) was discussed and followed.